All items from Impudent Bankruptcy Lawyer

What Has Gone Before
     Back in April, I posted about the U.S. Supreme Court's denial of certiorari on an unpublished order of the 11th Circuit Court of Appeals, in which the 11th Circuit followed a previous unpublished decision that allowed wholly unsecured liens to be "stripped off" in Chapter 7, using 11 U.S.C. §§506(a) & (e). As I discussed in that post, the 11th Circuit interpreted Dewsnup v. Timm, 502 U.S. 410 (1992) to be limited to partially secured first mortgages, and followed its own precedent  -- handed down before Dewsnup v. Timm --  in ruling that 11 U.S.C. §506 could be used to void wholly unsecured mortgages and liens in Chapter 7. See Folendore v. United States Small Bus. Admin., 862 F.2d 1537 (11th Cir. 1989).



Posted 19 weeks 7 hours ago

     This morning, on June 9, 2014, the U.S. Supreme Court issued its unanimous decision in Executive Benefits Agency  v. Arkinson, settling an issue that has plagued federal courts on all levels since the SCOTUS’s 2011 decision in Stern v. Marshall, 564 U.S. ___, 131 S. Ct. 2594 (2011):
Does the bankruptcy court violate Article III of the U.S. Constitution or Title 28 of the United States Code if it issues proposed findings and rulings on the type of issue identified in Stern v. Marshall as “core” under the bankruptcy statutory scheme, but beyond the tolerance of Article III if the bankruptcy court makes final findings of fact and rulings of law?
The Basics: Bankruptcy jurisdiction, since 1984, has divided issues into two categories: “core” matters spelled out in 28 U.S.C. §157(b)(2), which involve matters “arising in” a bankruptcy case and that a bankruptcy court would be expected to decide as part of the bankruptcy case (i.e., deciding whether proofs of claim are allowed, adjudicating the debtor’s discharge or the dischargeability of certain debts, confirming plans of reorganization); and “non-core” matters, which are matters “related to” the bankruptcy case. 



Posted 20 weeks 3 days ago

  In high school, my English teacher tasked me with memorizing and reciting a monologue from Shakespeare’s famous "Scottish Play", Macbeth. The monologue – the title character delivered it -- came from Act V, Scene 5, after Lady Macbeth’s own guilt catches up with her and takes her own life.  Although I sometimes confuse my own children’s names, I can still recall – and spout out instantly -- the lines I memorized and recited in front of the class some 42 years ago:



Posted 24 weeks 2 hours ago

     Last month, Judge William Hillman of the Boston Bankruptcy Court, in In re Maria A. D’Italia, Case No. 13-16051-WCH (March 18, 2014), confronted the following questions:  if a debtor signs a waiver of homestead rights in a guarantee, does that waiver then either: (a) release or subordinate the debtor's homestead vis-à-vis the creditor’s judgment and execution based on the debtor’s guarantee liability;  or (b) prohibit the debtor from avoiding the creditor’s execution on her home as a “judicial lien” under 11 U.S.C. §522(f)(1)?
     Judge Hillman answered both questions in the negative. To understand his answers, let’s review the homestead law in Massachusetts.
Massachusetts Homestead Basics



Posted 28 weeks 6 days ago

      Chapter 13 is not just for consumers. An individual in a sole proprietorship (or who is engaged in some business activity, such as renting properties as a landlord) has Chapter 13 available to him or her, provided that he or she meets the debt limits in 11 U.S.C. §109(e) and has regular income (either via the business activities or from other sources, such as separate employment). Chapter 13 is not available to partnerships (although individual partners may file), corporations or LLCs that operate businesses.



Posted 30 weeks 4 hours ago

     On March 31, 2014, the Supreme Court of the United States denied certiorari in Bank of America, N.A. v. Sinkfield, Petition No. 13-700. To put in terms appropriate to Major League Baseball’s opening day, this was the equivalent of Casey’s mighty whiff at strike three in the ninth inning, with the bases loaded, a full count, and the chance for a walk-off win.



Posted 30 weeks 2 days ago

Law v. Siegel  (U.S. Supreme Court opinion March 4, 2014)Exemptions Safe From Bankruptcy Court’s “Adjustment”Kevin C.



Posted 34 weeks 1 day ago

STERN v. MARSHALL, 131 S.Ct. 2594 (2011):WHY SHOULD YOU CARE?
Kevin C. McGee, PartnerSeder & Chandler, LLP339 Main Street, 3rd FloorWorcester, MA 01608

  • The Stern v. Marshall Facts:


Posted 1 year 46 weeks ago



FIRST LESSON: “A” is for “Avoidance” and “Abandonment”

DISCLAIMER:  Nothing on this blog is intended to be specific or complete legal advice and is for general informational purposes only. In other words, you are only getting the tip of the iceberg in this blog – call and schedule a consultation with me at (508) 757-7721 ext. 112 if you think what you read here might apply to you and your situation. 
First, know that the bankruptcy law and Webster’s Dictionary have different definitions of “avoidance” and “abandonment”. The two terms also describe very different powers that a trustee in bankruptcy may use in your case.



Posted 2 years 13 weeks ago

An introduction: I am a 51 year old attorney who lives and works in Worcester, Massachusetts. I am a partner at the law firm of Seder & Chandler, LLP, on Main Street in Worcester, and I concentrate my practice on bankruptcy (commercial and small business bankruptcy , as well as consumer bankruptcy), with a  litigation focus. To find out a little bit more about my practice and my firm, please visit sederlaw.com.

My interests outside of my practice include: being (an older) father to my two sons; playing volleyball; performing on the community theater stage; and reading and watching sci-fi and fantasy (in my spare time). Big Game of Thrones fan here, way back to 1996. I can discourse on the BoSox, the Pats, or the Celts and seem like I know what I'm talking about. I also enjoy good food, good wine, good beer, and good company -- you may see a restaurant review or two posted here.

My goals here are to post on bankruptcy legal topics that interest me. Nothing in this blog is intended to be specific or complete legal advice and is for general informational purposes only. In other words, you are only getting the tip of the iceberg here – call and schedule a consultation with me if you think what you read here might apply to you and your situation.



Posted 6 years 20 weeks ago